Lauren Sylvia's Law

SPONSORS MEMO:NEW YORK STATE SENATEINTRODUCER'S MEMORANDUM IN SUPPORTsubmitted in accordance with Senate Rule VI. Sec 1BILL NUMBER: S5589SPONSOR: GRIFFOTITLE OF BILL:An act to amend the criminal procedure law, in relation to retention ofcustody of persons found not guilty by reason of mental disease ordefectPURPOSE:Directs court to establish a period of commitment for persons found notresponsible by reason of mental disease or defect.SUMMARY OF PROVISIONS:Amends Section 330. 20 of the criminal procedure law to add languagethroughout the necessary subdivisions to create a sentence; examinationorder which would require upon entry of a verdict of not responsible byreason of mental disease or defect, or upon the acceptance of a plea ofnot responsible by reason of mental disease or defect, the court mustimpose a period of confinement in the custody of the commissioner whichis equal to the sentence of imprisonment such defendant would havereceived pursuant to article seventy of the penal law, upon convictionof the crime which he or she was charged and issue an examination order.In addition, under subdivision 6, under the issuance of such commitmentorder for the term of period of confinement imposed, pursuant to paragraph(a) of subdivision two of this section, and to such a securefacility as shall be suitable for a mentally ill person or a person witha dangerous mental disorder, as the case may be, based upon the examinationreports.JUSTIFICATION:This bill would amend the procedure following the verdict of Not Guiltyby Reason of Mental Disease or Defect. The bill would impose a period ofconfinement in a mental hygiene facility for the defendant that would beequal to the sentence of imprisonment for which they would have servedin a penal facility had they been found guilty for the crime with whichthey had been charged.The longer confinement would be beneficial for both the defendant andfor the community at large. The defendant would have more time in themental hygiene facility where they are guaranteed treatment for theirdisease as well as having more time to gain skills to help them managetheir disease once released and cope with any guilt associated with thecrime(s) committed when found not guilty by reason of mental disease ordefect.When treatment for mental illness is administered, studies show dramaticdrops in rates of suicide, homelessness, violence and future incarcerationor hospitalization. This bill would also allow peace of mind forthose victims or families of victims knowing that this person will be ina hospital receiving treatment for a significant amount of time and notable to harm them or their family in the near future.High profile cases like those of John Hinckley, Jr. who attempted toassassinate President Ronald Reagan and recently Jared Lee Loughner ofArizona who shot and killed six people, including a 9-year-old girl anda federal judge while wounding 13 others including Congresswoman GabrielleGiffords demonstrate the need to make sure these dangerous individualsare confined whether it be in a penal or mental hygiene facilityfor a determined period of time.Once the individual has been confined for the determined period of timeif they are assessed to be "healthy" by mental health professionals andexperts they would be able to go through the process of being releasedfrom such mental facility. However, should they still be perceived to bea danger to themselves or others even after the period of determinedconfinement is reached the state shall follow necessary procedures tohave such person civilly confined for their safety and that of thecommunity.LEGISLATIVE HISTORY:This is a new bill.FISCAL IMPLICATIONS:To be determined.EFFECTIVE DATE:This act shall take effect on the first of January next succeeding thedate on which it shall have become a law and shall apply to criminaloffenses committed on or after such date.BILL TEXT:STATE OF NEW YORK________________________________________________________________________55892011-2012 Regular SessionsIN SENATEJune 3, 2011___________Introduced by Sen. GRIFFO -- read twice and ordered printed, and whenprinted to be committed to the Committee on CodesAN ACT to amend the criminal procedure law, in relation to retention ofcustody of persons found not guilty by reason of mental disease ordefectThe People of the State of New York, represented in Senate and Assembly,do enact as follows:1 Section 1. Section 330.20 of the criminal procedure law, as added by2 chapter 548 of the laws of 1980, paragraph (o) of subdivision 1, the3 closing paragraph of subdivision 2 and subdivisions 7-a and 22 as4 amended by chapter 107 of the laws of 2004, subdivisions 2 and 20 as5 amended by chapter 693 of the laws of 1989, subdivisions 5, 8, 9, 10,6 11, 12, 13 and 14 as amended by chapter 789 of the laws of 1985, subdi-7 vision 21 as added by chapter 976 of the laws of 1983, and subparagraph8 (ii) of paragraph (a) of subdivision 21 as amended by chapter 330 of the9 laws of 1993, is amended to read as follows:10 § 330.20 Procedure following verdict or plea of not responsible by11 reason of mental disease or defect.12 1. Definition of terms. As used in this section, the following terms13 shall have the following meanings:14 (a) "Commissioner" means the [state] commissioner of mental health or15 the [state] commissioner of [mental retardation and] developmental16 [disability] disabilities.17 (b) "Secure facility" means a facility within the [state] office of18 mental health or the [state] office [of mental retardation and] for19 people with developmental disabilities which is staffed with personnel20 adequately trained in security methods and is so equipped as to minimize21 the risk or danger of escapes, and which has been so specifically desig-22 nated by the commissioner.23 (c) "Dangerous mental disorder" means: (i) that a defendant currently24 suffers from a "mental illness" as that term is defined in subdivisionEXPLANATION--Matter in italics (underscored) is new; matter in brackets[ ] is old law to be omitted.LBD11734-01-1S. 5589 21 twenty of section 1.03 of the mental hygiene law, and (ii) that because2 of such condition he currently constitutes a physical danger to himself3 or herself or others.4 (d) "Mentally ill" means that a defendant currently suffers from a5 mental illness for which care and treatment as a patient, in the in-pa-6 tient services of a psychiatric center under the jurisdiction of the7 [state] office of mental health, is essential to such defendant's8 welfare and that his or her judgment is so impaired that he or she is9 unable to understand the need for such care and treatment; and, where a10 defendant is mentally retarded, the term "mentally ill" shall also mean,11 for purposes of this section, that the defendant is in need of care and12 treatment as a resident in the in-patient services of a developmental13 center or other residential facility for the mentally retarded and14 developmentally disabled under the jurisdiction of the [state] office15 [of mental retardation and] for people with developmental disabilities.16 (e) "Examination order" means an order directed to the commissioner17 requiring that a defendant submit to a psychiatric examination to deter-18 mine whether the defendant has a dangerous mental disorder, or if he or19 she does not have a dangerous mental disorder, whether he or she is20 mentally ill.21 (f) "Commitment order" [or "recommitment order"] means an order22 committing a defendant to the custody of the commissioner for confine-23 ment in a secure facility for care and treatment [for six months from24 the date of the order].25 (g) "First retention order" means an order which is effective at the26 expiration of the period prescribed in a commitment order [for] or a27 recommitment order, authorizing continued custody of a defendant by the28 commissioner for a period not to exceed one year.29 (h) "Second retention order" means an order which is effective at the30 expiration of the period prescribed in a first retention order, author-31 izing continued custody of a defendant by the commissioner for a period32 not to exceed two years.33 (i) "Subsequent retention order" means an order which is effective at34 the expiration of the period prescribed in a second retention order or a35 prior subsequent retention order authorizing continued custody of a36 defendant by the commissioner for a period not to exceed two years.37 (j) "Retention order" means a first retention order, a second38 retention order or a subsequent retention order.39 (k) "Furlough order" means an order directing the commissioner to40 allow a defendant in confinement pursuant to a commitment order, recom-41 mitment order or retention order to temporarily leave the facility for a42 period not exceeding fourteen days, [either] with [or without] the43 constant supervision of one or more employees of the facility.44 (l) "Transfer order" means an order directing the commissioner to45 transfer a defendant from a secure facility to a non-secure facility46 under the jurisdiction of the commissioner or to any non-secure facility47 designated by the commissioner.48 (m) "Release order" means an order directing the commissioner to49 terminate a defendant's in-patient status without terminating the50 commissioner's responsibility for the defendant.51 (n) "Discharge order" means an order terminating an order of condi-52 tions or unconditionally discharging a defendant from supervision under53 the provisions of this section.54 (o) "Order of conditions" means an order directing a defendant to55 comply with this prescribed treatment plan, or any other condition which56 the court determines to be reasonably necessary or appropriate, and, inS. 5589 31 addition, where a defendant is in custody of the commissioner, not to2 leave the facility without authorization. In addition to such condi-3 tions, when determined to be reasonably necessary or appropriate, an4 order of conditions may be accompanied by a special order of conditions5 set forth in a separate document requiring that the defendant: (i) stay6 away from the home, school, business or place of employment of the7 victim or victims, or of any witness designated by the court, of such8 offense; or (ii) refrain from harassing, intimidating, threatening or9 otherwise interfering with the victim or victims of the offense and such10 members of the family or household of such victim or victims as shall be11 specifically named by the court in such special order. An order of12 conditions or special order of conditions shall be valid for five years13 from the date of its issuance, except that, for good cause shown, the14 court may extend the period for an additional five years.15 (p) "District attorney" means the office which prosecuted the criminal16 action resulting in the verdict or plea of not responsible by reason of17 mental disease or defect.18 (q) "Qualified psychiatrist" means a physician who (i) is a diplomate19 of the American board of psychiatry and neurology or is eligible to be20 certified by that board; or (ii) is certified by the American osteopath-21 ic board of neurology and psychiatry or is eligible to be certified by22 that board.23 (r) "Licensed psychologist" means a person who is registered as a24 psychologist under article one hundred fifty-three of the education law.25 (s) "Psychiatric examiner" means a qualified psychiatrist or a26 licensed psychologist who has been designated by the commissioner to27 examine a defendant pursuant to this section, and such designee need not28 be an employee of the department of mental hygiene.29 2. [Examination] Sentence; examination order; psychiatric examiners.30 Upon entry of a verdict of not responsible by reason of mental disease31 or defect, or upon the acceptance of a plea of not responsible by reason32 of mental disease or defect, the court must immediately (a) impose a33 period of confinement in the custody of the commissioner which is equal34 to the sentence of imprisonment such defendant would have received35 pursuant to article seventy of the penal law, upon conviction of the36 crime with which he or she was charged; and (b) issue an examination37 order. Upon receipt of such order, the commissioner must designate two38 qualified psychiatric examiners to conduct the examination to examine39 the defendant. In conducting their examination, the psychiatric examin-40 ers may employ any method which is accepted by the medical profession41 for the examination of persons alleged to be suffering from a dangerous42 mental disorder or to be mentally ill or retarded. The court may author-43 ize a psychiatrist or psychologist retained by a defendant to be present44 at such examination. The clerk of the court must promptly forward a copy45 of the examination order to the mental hygiene legal service and such46 service may thereafter participate in all subsequent proceedings under47 this section.48 In all subsequent proceedings under this section, [prior to the issu-49 ance of a special order of conditions,] the court shall consider whether50 any order of protection had been issued prior to a verdict of not51 responsible by reason of mental disease or defect in the case, or prior52 to the acceptance of a plea of not responsible by reason of mental53 disease or defect in the case.54 3. Examination order; place of examination. Upon issuing an examina-55 tion order, the court must, except as otherwise provided in this subdi-56 vision, direct that the defendant be committed to a secure facilityS. 5589 41 designated by the commissioner as the place for such psychiatric exam-2 ination. The sheriff must hold the defendant in custody pending such3 designation by the commissioner, and when notified of the designation,4 the sheriff must promptly deliver the defendant to such secure facility.5 [When the defendant is not in custody at the time of such verdict or6 plea, because he was previously released on bail or on his own recogni-7 zance, the court, in its discretion, may direct that such examination be8 conducted on an out-patient basis, and at such time and place as the9 commissioner shall designate. If, however, the commissioner informs the10 court that confinement of the defendant is necessary for an effective11 examination, the court must direct that the defendant be confined in a12 facility designated by the commissioner until the examination is13 completed.]14 4. Examination order, duration. Confinement in a secure facility15 pursuant to an examination order shall be for a period not exceeding16 thirty days, except that, upon application of the commissioner, the17 court may authorize confinement for an additional period not exceeding18 thirty days when a longer period is necessary to complete the examina-19 tion. [If the initial hearing required by subdivision six of this20 section has not commenced prior to the termination of such examination21 period, the commissioner shall retain custody of the defendant in such22 secure facility until custody is transferred to the sheriff in the23 manner prescribed in subdivision six of this section.] During the period24 of such confinement, the physician in charge of the facility may admin-25 ister or cause to be administered to the defendant such emergency26 psychiatric, medical or other therapeutic treatment as in his or her27 judgment should be administered. [If the court has directed that the28 examination be conducted on an out-patient basis, the examination shall29 be completed within thirty days after the defendant has first reported30 to the place designated by the commissioner, except that, upon applica-31 tion of the commissioner, the court may extend such period for a reason-32 able time if a longer period is necessary to complete the examination.]33 5. Examination order; reports. After he or she has completed his or34 her examination of the defendant, each psychiatric examiner must prompt-35 ly prepare a report of his or her findings and evaluation concerning the36 defendant's mental condition, and submit such report to the commission-37 er. If the psychiatric examiners differ in their opinion as to whether38 the defendant is mentally ill or is suffering from a dangerous mental39 disorder, the commissioner must designate another psychiatric examiner40 to examine the defendant. Upon receipt of the examination reports, the41 commissioner must submit them to the court that issued the examination42 order. If the court is not satisfied with the findings of these psychi-43 atric examiners, the court may designate one or more additional psychi-44 atric examiners pursuant to subdivision fifteen of this section. [The45 court must furnish a copy of the reports to the district attorney, coun-46 sel for the defendant and the mental hygiene legal service.]47 6. [Initial hearing; commitment] Commitment order. After the examina-48 tion reports are submitted, the court must[, within ten days of the49 receipt of such reports, conduct an initial hearing to determine the50 defendant's present mental condition. If the defendant is in the custody51 of the commissioner pursuant to an examination order, the court must52 direct the sheriff to obtain custody of the defendant from the commis-53 sioner and to confine the defendant pending further order of the court,54 except that the court may direct the sheriff to confine the defendant in55 an institution located near the place where the court sits if that56 institution has been designated by the commissioner as suitable for theS. 5589 51 temporary and secure detention of mentally disabled persons. At such2 initial hearing, the district attorney must establish to the satisfac-3 tion of the court that the defendant has a dangerous mental disorder or4 is mentally ill. If the court finds that the defendant has a dangerous5 mental disorder, it must] issue a commitment order for the term of the6 period of confinement imposed, pursuant to paragraph (a) of subdivision7 two of this section, and to such a secure facility as shall be suitable8 for a mentally ill person or a person with a dangerous mental disorder,9 as the case may be, based upon the examination reports. [If the court10 finds that the defendant does not have a dangerous mental disorder but11 is mentally ill, the provisions of subdivision seven of this section12 shall apply.]13 7. [Initial hearing civil commitment and order of conditions. If, at14 the conclusion of the initial hearing conducted pursuant to subdivision15 six of this section, the court finds that the defendant is mentally ill16 but does not have a dangerous mental disorder, the provisions of arti-17 cles nine or fifteen of the mental hygiene law shall apply at that stage18 of the proceedings and at all subsequent proceedings. Having found that19 the defendant is mentally ill, the court must issue an order of condi-20 tions and an order committing the defendant to the custody of the21 commissioner. The latter order shall be deemed an order made pursuant to22 the mental hygiene law and not pursuant to this section, and further23 retention, conditional release or discharge of such defendant shall be24 in accordance with the provisions of the mental hygiene law. If, at the25 conclusion of the initial hearing, the court finds that the defendant26 does not have a dangerous mental disorder and is not mentally ill, the27 court must discharge the defendant either unconditionally or subject to28 an order of conditions.29 7-a. Whenever the court issues a special order of conditions pursuant30 to this section, the commissioner shall make reasonable efforts to noti-31 fy the victim or victims or the designated witness or witnesses that a32 special order of conditions containing such provisions has been issued,33 unless such victim or witness has requested that such notice should not34 be provided.35 8.] First retention order. When a defendant is in the custody of the36 commissioner pursuant to a commitment order, the commissioner must, at37 least thirty days prior to the expiration of the period prescribed in38 the order, apply to the court that issued the order, or to a superior39 court in the county where the secure facility is located, for a first40 retention order or a release order. The commissioner must give written41 notice of the application to the district attorney, the defendant, coun-42 sel for the defendant, and the mental hygiene legal service. Upon43 receipt of such application, the court may, on its own motion, conduct a44 hearing to determine whether the defendant has a dangerous mental disor-45 der, and it must conduct such hearing if a demand therefor is made by46 the district attorney, the defendant, counsel for the defendant, or the47 mental hygiene legal service within ten days from the date that notice48 of the application was given to them. If such a hearing is held on an49 application for retention, the commissioner must establish to the satis-50 faction of the court that the defendant has a dangerous mental disorder51 or is mentally ill. The district attorney shall be entitled to appear52 and present evidence at such hearing. If such a hearing is held on an53 application for release, the district attorney must establish to the54 satisfaction of the court that the defendant has a dangerous mental55 disorder or is mentally ill. If the court finds that the defendant has a56 dangerous mental disorder it must issue a first retention order. If theS. 5589 61 court finds that the defendant is mentally ill but does not have a2 dangerous mental disorder, it must issue a first retention order and,3 pursuant to subdivision [eleven] ten of this section, a transfer order4 and an order of conditions. If the court finds that the defendant does5 not have a dangerous mental disorder and is not mentally ill, it must6 issue a release order and an order of conditions pursuant to subdivision7 [twelve] eleven of this section.8 [9.] 8. Second and subsequent retention orders. When a defendant is in9 the custody of the commissioner pursuant to a first retention order, the10 commissioner must, at least thirty days prior to the expiration of the11 period prescribed in the order, apply to the court that issued the12 order, or to a superior court in the county where the facility is13 located, for a second retention order or a release order. The commis-14 sioner must give written notice of the application to the district15 attorney, the defendant, counsel for the defendant, and the mental16 hygiene legal service. Upon receipt of such application, the court may,17 on its own motion, conduct a hearing to determine whether the defendant18 has a dangerous mental disorder, and it must conduct such hearing if a19 demand therefor is made by the district attorney, the defendant, counsel20 for the defendant, or the mental hygiene legal service within ten days21 from the date that notice of the application was given to them. If such22 a hearing is held on an application for retention, the commissioner must23 establish to the satisfaction of the court that the defendant has a24 dangerous mental disorder or is mentally ill. The district attorney25 shall be entitled to appear and present evidence at such hearing. If26 such a hearing is held on an application for release, the district27 attorney must establish to the satisfaction of the court that the28 defendant has a dangerous mental disorder or is mentally ill. If the29 court finds that the defendant has a dangerous mental disorder it must30 issue a second retention order. If the court finds that the defendant is31 mentally ill but does not have a dangerous mental disorder, it must32 issue a second retention order and, pursuant to subdivision [eleven] ten33 of this section, a transfer order and an order of conditions. If the34 court finds that the defendant does not have a dangerous mental disorder35 and is not mentally ill, it must issue a release order and an order of36 conditions pursuant to subdivision [twelve] eleven of this section. When37 a defendant is in the custody of the commissioner prior to the expira-38 tion of the period prescribed in a second retention order, the proce-39 dures set forth in this subdivision for the issuance of a second40 retention order shall govern the application for and the issuance of any41 subsequent retention order.42 [10.] 9. Furlough order. The commissioner may apply for a furlough43 order, pursuant to this subdivision, when a defendant is in his or her44 custody pursuant to a [commitment order,] recommitment order[,] or45 retention order and the commissioner is of the view that, consistent46 with the public safety and welfare of the community and the defendant,47 the clinical condition of the defendant warrants a granting of the priv-48 ileges authorized by a furlough order. The application for a furlough49 order may be made to the court that issued the commitment order, or to a50 superior court in the county where the secure facility is located. The51 commissioner must give ten days written notice to the district attorney,52 the defendant, counsel for the defendant, and the mental hygiene legal53 service. Upon receipt of such application, the court may, on its own54 motion, conduct a hearing to determine whether the application should be55 granted, and must conduct such hearing if a demand therefor is made by56 the district attorney. If the court finds that the issuance of aS. 5589 71 furlough order is consistent with the public safety and welfare of the2 community and the defendant, and that the clinical condition of the3 defendant warrants a granting of the privileges authorized by a furlough4 order, the court must grant the application and issue a furlough order5 containing any terms and conditions that the court deems necessary or6 appropriate. If the defendant fails to return to the secure facility at7 the time specified in the furlough order, then, for purposes of subdivi-8 sion [nineteen] eighteen of this section, he or she shall be deemed to9 have escaped.10 [11.] 10. Transfer order and order of conditions. The commissioner may11 apply for a transfer order, pursuant to this subdivision, when a defend-12 ant is in his or her custody pursuant to a retention order or a recom-13 mitment order, and the commissioner is of the view that the defendant14 does not have a dangerous mental disorder or that, consistent with the15 public safety and welfare of the community and the defendant, the clin-16 ical condition of the defendant warrants his or her transfer from a17 secure facility to a non-secure facility under the jurisdiction of the18 commissioner or to any non-secure facility designated by the commission-19 er. The application for a transfer order may be made to the court that20 issued the order under which the defendant is then in custody, or to a21 superior court in the county where the secure facility is located. The22 commissioner must give ten days written notice to the district attorney,23 the defendant, counsel for the defendant, and the mental hygiene legal24 service. Upon receipt of such application, the court may, on its own25 motion, conduct a hearing to determine whether the application should be26 granted, and must conduct such hearing if the demand therefor is made by27 the district attorney. At such hearing, the district attorney must28 establish to the satisfaction of the court that the defendant has a29 dangerous mental disorder or that the issuance of a transfer order is30 inconsistent with the public safety and welfare of the community. The31 court must grant the application and issue a transfer order if the court32 finds that the defendant does not have a dangerous mental disorder, or33 if the court finds that the issuance of a transfer order is consistent34 with the public safety and welfare of the community and the defendant35 and that the clinical condition of the defendant, warrants his or her36 transfer from a secure facility to a non-secure facility. A court must37 also issue a transfer order when, in connection with an application for38 a first retention order pursuant to subdivision [eight] seven of this39 section or a second or subsequent retention order pursuant to subdivi-40 sion [nine] eight of this section, it finds that a defendant is mentally41 ill but does not have a dangerous mental disorder. Whenever a court42 issues a transfer order it must also issue an order of conditions.43 [12.] 11. Release order and order of conditions. The commissioner may44 apply for a release order, pursuant to this subdivision, when a defend-45 ant is in his or her custody pursuant to a retention order or recommit-46 ment order, and the commissioner is of the view that the defendant no47 longer has a dangerous mental disorder and is no longer mentally ill.48 The application for a release order may be made to the court that issued49 the order under which the defendant is then in custody, or to a superior50 court in the county where the facility is located. The application must51 contain a description of the defendant's current mental condition, the52 past course of treatment, a history of the defendant's conduct subse-53 quent to his or her commitment, a written service plan for continued54 treatment which shall include the information specified in subdivision55 (g) of section 29.15 of the mental hygiene law, and a detailed statement56 of the extent to which supervision of the defendant after release isS. 5589 81 proposed. The commissioner must give ten days written notice to the2 district attorney, the defendant, counsel for the defendant, and the3 mental hygiene legal service. Upon receipt of such application, the4 court must promptly conduct a hearing to determine the defendant's pres-5 ent mental condition. At such hearing, the district attorney must6 establish to the satisfaction of the court that the defendant has a7 dangerous mental disorder or is mentally ill. If the court finds that8 the defendant has a dangerous mental disorder, it must deny the applica-9 tion for a release order. If the court finds that the defendant does not10 have a dangerous mental disorder but is mentally ill, it must issue a11 transfer order pursuant to subdivision [eleven] ten of this section if12 the defendant is then confined in a secure facility. If the court finds13 that the defendant does not have a dangerous mental disorder and is not14 mentally ill, it must grant the application and issue a release order. A15 court must also issue a release order when, in connection with an appli-16 cation for a first retention order pursuant to subdivision [eight] seven17 of this section or a second or subsequent retention order pursuant to18 subdivision [nine] eight of this section, it finds that the defendant19 does not have a dangerous mental disorder and is not mentally ill. When-20 ever a court issues a release order it must also issue an order of21 conditions. If the court has previously issued a transfer order and an22 order of conditions, it must issue a new order of conditions upon issu-23 ing a release order. The order of conditions issued in conjunction with24 a release order shall incorporate a written service plan prepared by a25 psychiatrist familiar with the defendant's case history and approved by26 the court, and shall contain any conditions that the court determines to27 be reasonably necessary or appropriate. It shall be the responsibility28 of the commissioner to determine that such defendant is receiving the29 services specified in the written service plan and is complying with any30 conditions specified in such plan and the order of conditions.31 [13.] 12. Discharge order. The commissioner may apply for a discharge32 order, pursuant to this subdivision, when a defendant has been contin-33 uously on an out-patient status for three years or more pursuant to a34 release order, and the commissioner is of the view that the defendant no35 longer has a dangerous mental disorder and is no longer mentally ill and36 that the issuance of a discharge order is consistent with the public37 safety and welfare of the community and the defendant. The application38 for a discharge order may be made to the court that issued the release39 order, or to a superior court in the county where the defendant is then40 residing. The commissioner must give ten days written notice to the41 district attorney, the defendant, counsel for the defendant, and the42 mental hygiene legal service. Upon receipt of such application, the43 court may, on its own motion, conduct a hearing to determine whether the44 application should be granted, and must conduct such hearing if a demand45 therefor is made by the district attorney. The court must grant the46 application and issue a discharge order if the court finds that the47 defendant has been continuously on an out-patient status for three years48 or more, that he or she does not have a dangerous mental disorder and is49 not mentally ill, and that the issuance of the discharge order is50 consistent with the public safety and welfare of the community and the51 defendant.52 [14] 13. Recommitment order. At any time during the period covered by53 an order of conditions an application may be made by the commissioner or54 the district attorney to the court that issued such order, or to a supe-55 rior court in the county where the defendant is then residing, for a56 recommitment order when the applicant is of the view that the defendantS. 5589 91 has a dangerous mental disorder. The applicant must give written notice2 of the application to the defendant, counsel for the defendant, and the3 mental hygiene legal service, and if the applicant is the commissioner4 he or she must give such notice to the district attorney or if the5 applicant is the district attorney he or she must give such notice to6 the commissioner. Upon receipt of such application the court must order7 the defendant to appear before it for a hearing to determine if the8 defendant has a dangerous mental disorder. Such order may be in the form9 of a written notice, specifying the time and place of appearance, served10 personally upon the defendant, or mailed to his or her last known11 address, as the court may direct. If the defendant fails to appear in12 court as directed, the court [may] shall issue a warrant to an appropri-13 ate peace officer directing him or her to take the defendant into custo-14 dy and bring him or her before the court. In such circumstance, the15 court [may] shall direct that the defendant be confined in an appropri-16 ate institution located near the place where the court sits. The court17 must conduct a hearing to determine whether the defendant has a danger-18 ous mental disorder. At such hearing, the applicant, whether he or she19 be the commissioner or the district attorney must establish to the20 satisfaction of the court that the defendant has a dangerous mental21 disorder. If the applicant is the commissioner, the district attorney22 shall be entitled to appear and present evidence at such hearing; if the23 applicant is the district attorney, the commissioner shall be entitled24 to appear and present evidence at such hearing. If the court finds that25 the defendant has a dangerous mental disorder, it must issue a recommit-26 ment order. When a defendant is in the custody of the commissioner27 pursuant to a recommitment order, the procedures set forth in subdivi-28 sions seven and eight [and nine] of this section for the issuance of29 retention orders shall govern the application for and the issuance of a30 first retention order, a second retention order, and subsequent31 retention orders.32 [15] 14. Designation of psychiatric examiners. If, at any hearing33 conducted under this section to determine the defendant's present mental34 condition, the court is not satisfied with the findings of the psychiat-35 ric examiners, the court may direct the commissioner to designate one or36 more additional psychiatric examiners to conduct an examination of the37 defendant and submit a report of their findings. In addition, the court38 may on its own motion, or upon request of a party, may designate one or39 more psychiatric examiners to examine the defendant and submit a report40 of their findings. The district attorney may apply to the court for an41 order directing that the defendant submit to an examination by a psychi-42 atric examiner designated by the district attorney, and such psychiatric43 examiner may testify at the hearing.44 [16] 15. Rehearing and review. Any defendant who is in the custody of45 the commissioner pursuant to a [commitment order,] a retention order, or46 a recommitment order, if dissatisfied with such order, may, within thir-47 ty days after the making of such order, obtain a rehearing and review of48 the proceedings and of such order in accordance with the provisions of49 section 9.35 or 15.35 of the mental hygiene law.50 [17] 16. Rights of defendants. Subject to the limitations and51 provisions of this section, a defendant committed to the custody of the52 commissioner pursuant to this section shall have the rights granted to53 patients under the mental hygiene law.54 [18] 17. Notwithstanding any other provision of law, no person55 confined by reason of a [commitment order,] recommitment order or56 retention order to a secure facility may be discharged or releasedS. 5589 101 unless the commissioner shall deliver written notice, at least four days2 excluding Saturdays, Sundays and holidays, in advance of such discharge3 or release to all of the following:4 (a) the district attorney.5 (b) the police department having jurisdiction of the area to which the6 defendant is to be discharged or released.7 (c) any other person the court may designate.8 The notices required by this subdivision shall be given by the facili-9 ty staff physician who was treating the defendant or, if unavailable, by10 the defendant's treatment team leader, but if neither is immediately11 available, notice must be given by some other member of the clinical12 staff of the facility. Such notice must be given by any means reasonably13 calculated to give prompt actual notice.14 [19] 18. Escape from custody; notice requirements. If a defendant is15 in the custody of the commissioner pursuant to an order issued under16 this section, and such defendant escapes from custody, immediate notice17 of such escape shall be given by the department facility staff to: (a)18 the district attorney, (b) the superintendent of state police, (c) the19 sheriff of the county where the escape occurred, (d) the police depart-20 ment having jurisdiction of the area where the escape occurred, (e) any21 person the facility staff believes to be in danger, and (f) any law22 enforcement agency and any person the facility staff believes would be23 able to apprise such endangered person that the defendant has escaped24 from the facility. Such notice shall be given as soon as the facility25 staff know that the defendant has escaped from the facility and shall26 include such information as will adequately identify the defendant and27 the person or persons believed to be in danger and the nature of the28 danger. The notices required by this subdivision shall be given by the29 facility staff physician who was treating the defendant or, if unavail-30 able, by the defendant's treatment team leader, but if neither is imme-31 diately available, notice must be given by some other member of the32 clinical staff of the facility. Such notice must be given by any means33 reasonably calculated to give prompt actual notice. The defendant may be34 apprehended, restrained, transported to, and returned to the facility35 from which he escaped by any peace officer, and it shall be the duty of36 the officer to assist any representative of the commissioner to take the37 defendant into custody upon the request of such representative.38 [20] 19. Required affidavit. No application may be made by the39 commissioner under this section without an accompanying affidavit from40 at least one psychiatric examiner supportive of relief requested in the41 application, which affidavit shall be served on all parties entitled to42 receive the notice of application. Such affidavit shall set forth the43 defendant's clinical diagnosis, a detailed analysis of his or her mental44 condition which caused the psychiatric examiner to formulate an opinion,45 and the opinion of the psychiatric examiner with respect to the defend-46 ant. Any application submitted without the required affidavit shall be47 dismissed by the court.48 [21] 20. Appeals. (a) A party to proceedings conducted in accordance49 with the provisions of this section may take an appeal to an intermedi-50 ate appellate court by permission of the intermediate appellate court as51 follows:52 (i) the commissioner may appeal from any release order, retention53 order, transfer order, discharge order, order of conditions, or recom-54 mitment order, for which he or she has not applied;55 (ii) a defendant, or the mental hygiene legal service on his or her56 behalf, may appeal from any [commitment order,] retention order, recom-S. 5589 111 mitment order, or, if the defendant has obtained a rehearing and review2 of any such order pursuant to subdivision [sixteen] fifteen of this3 section, from an order, not otherwise appealable as of right, issued in4 accordance with the provisions of section 9.35 or 15.35 of the mental5 hygiene law authorizing continued retention under the original order,6 provided, however, that a defendant who takes an appeal from a [commit-7 ment order,] retention order, or recommitment order may not subsequently8 obtain a rehearing and review of such order pursuant to subdivision9 [sixteen] fifteen of this section;10 (iii) the district attorney may appeal from any release order, trans-11 fer order, discharge order, order of conditions, furlough order, or12 order denying an application for a recommitment order which he or she13 opposed.14 (b) An aggrieved party may appeal from a final order of the intermedi-15 ate appellate court to the court of appeals by permission of the inter-16 mediate appellate court granted before application to the court of17 appeals, or by permission of the court of appeals upon refusal by the18 intermediate appellate court or upon direct application.19 (c) An appeal taken under this subdivision shall be deemed civil in20 nature, and shall be governed by the laws and rules applicable to civil21 appeals; provided, however, that a stay of the order appealed from must22 be obtained in accordance with the provisions of paragraph (d) [hereof]23 of this subdivision.24 (d) The court from or to which an appeal is taken may stay all25 proceedings to enforce the order appealed from pending an appeal or26 determination on a motion for permission to appeal, or may grant a27 limited stay, except that only the court to which an appeal is taken may28 vacate, limit, or modify a stay previously granted. If the order29 appealed from is affirmed or modified, the stay shall continue for five30 days after service upon the appellant of the order of affirmance or31 modification with notice of its entry in the court to which the appeal32 was taken. If a motion is made for permission to appeal from such an33 order, before the expiration of the five days, the stay, or any other34 stay granted pending determination of the motion for permission to35 appeal, shall:36 (i) if the motion is granted, continue until five days after the37 appeal is determined; or38 (ii) if the motion is denied, continue until five days after the39 movant is served with the order of denial with notice of its entry.40 [22] 21. Any special order of conditions issued pursuant to subpara-41 graph (i) or (ii) of paragraph (o) of subdivision one of this section42 shall bear in a conspicuous manner the term "special order of condi-43 tions" and a copy shall be filed by the clerk of the court with the44 sheriff's office in the county in which anyone intended to be protected45 by such special order resides, or, if anyone intended to be protected by46 such special order resides within a city, with the police department of47 such city. The absence of language specifying that the order is a48 "special order of conditions" shall not affect the validity of such49 order. A copy of such special order of conditions may from time to time50 be filed by the clerk of the court with any other police department or51 sheriff's office having jurisdiction of the residence, work place, or52 school of anyone intended to be protected by such special order. A copy53 of such special order may also be filed by anyone intended to be54 protected by such provisions at the appropriate police department or55 sheriff's office having jurisdiction. Any subsequent amendment or revo-56 cation of such special order may be filed in the same manner as providedS. 5589 121 in this subdivision. Such special order of conditions shall plainly2 state the date that the order expires.3 § 2. This act shall take effect on the first of January next succeed-4 ing the date on which it shall have become a law and shall apply to5 criminal offenses committed on or after such date.

Letter to

U.S. House of Representatives

U.S. Senate

New York State House

and 3 others

New York State Senate

New York Governor

Senator Joe Griffo

SPONSORS MEMO:NEW YORK STATE SENATEINTRODUCER'S MEMORANDUM IN SUPPORTsubmitted in accordance with Senate Rule VI. Sec 1BILL NUMBER: S5589SPONSOR: GRIFFOTITLE OF BILL:An act to amend the criminal procedure law, in relation to retention ofcustody of persons found not guilty by reason of mental disease ordefectPURPOSE:Directs court to establish a period of commitment for persons found notresponsible by reason of mental disease or defect.SUMMARY OF PROVISIONS:Amends Section 330. 20 of the criminal procedure law to add languagethroughout the necessary subdivisions to create a sentence; examinationorder which would require upon entry of a verdict of not responsible byreason of mental disease or defect, or upon the acceptance of a plea ofnot responsible by reason of mental disease or defect, the court mustimpose a period of confinement in the custody of the commissioner whichis equal to the sentence of imprisonment such defendant would havereceived pursuant to article seventy of the penal law, upon convictionof the crime which he or she was charged and issue an examination order.In addition, under subdivision 6, under the issuance of such commitmentorder for the term of period of confinement imposed, pursuant to paragraph(a) of subdivision two of this section, and to such a securefacility as shall be suitable for a mentally ill person or a person witha dangerous mental disorder, as the case may be, based upon the examinationreports.JUSTIFICATION:This bill would amend the procedure following the verdict of Not Guiltyby Reason of Mental Disease or Defect. The bill would impose a period ofconfinement in a mental hygiene facility for the defendant that would beequal to the sentence of imprisonment for which they would have servedin a penal facility had they been found guilty for the crime with whichthey had been charged.The longer confinement would be beneficial for both the defendant andfor the community at large. The defendant would have more time in themental hygiene facility where they are guaranteed treatment for theirdisease as well as having more time to gain skills to help them managetheir disease once released and cope with any guilt associated with thecrime(s) committed when found not guilty by reason of mental disease ordefect.When treatment for mental illness is administered, studies show dramaticdrops in rates of suicide, homelessness, violence and future incarcerationor hospitalization. This bill would also allow peace of mind forthose victims or families of victims knowing that this person will be ina hospital receiving treatment for a significant amount of time and notable to harm them or their family in the near future.High profile cases like those of John Hinckley, Jr. who attempted toassassinate President Ronald Reagan and recently Jared Lee Loughner ofArizona who shot and killed six people, including a 9-year-old girl anda federal judge while wounding 13 others including Congresswoman GabrielleGiffords demonstrate the need to make sure these dangerous individualsare confined whether it be in a penal or mental hygiene facilityfor a determined period of time.Once the individual has been confined for the determined period of timeif they are assessed to be "healthy" by mental health professionals andexperts they would be able to go through the process of being releasedfrom such mental facility. However, should they still be perceived to bea danger to themselves or others even after the period of determinedconfinement is reached the state shall follow necessary procedures tohave such person civilly confined for their safety and that of thecommunity.LEGISLATIVE HISTORY:This is a new bill.FISCAL IMPLICATIONS:To be determined.EFFECTIVE DATE:This act shall take effect on the first of January next succeeding thedate on which it shall have become a law and shall apply to criminaloffenses committed on or after such date.BILL TEXT:STATE OF NEW YORK________________________________________________________________________55892011-2012 Regular SessionsIN SENATEJune 3, 2011___________Introduced by Sen. GRIFFO -- read twice and ordered printed, and whenprinted to be committed to the Committee on CodesAN ACT to amend the criminal procedure law, in relation to retention ofcustody of persons found not guilty by reason of mental disease ordefectThe People of the State of New York, represented in Senate and Assembly,do enact as follows:1 Section 1. Section 330.20 of the criminal procedure law, as added by2 chapter 548 of the laws of 1980, paragraph (o) of subdivision 1, the3 closing paragraph of subdivision 2 and subdivisions 7-a and 22 as4 amended by chapter 107 of the laws of 2004, subdivisions 2 and 20 as5 amended by chapter 693 of the laws of 1989, subdivisions 5, 8, 9, 10,6 11, 12, 13 and 14 as amended by chapter 789 of the laws of 1985, subdi-7 vision 21 as added by chapter 976 of the laws of 1983, and subparagraph8 (ii) of paragraph (a) of subdivision 21 as amended by chapter 330 of the9 laws of 1993, is amended to read as follows:10 § 330.20 Procedure following verdict or plea of not responsible by11 reason of mental disease or defect.12 1. Definition of terms. As used in this section, the following terms13 shall have the following meanings:14 (a) "Commissioner" means the [state] commissioner of mental health or15 the [state] commissioner of [mental retardation and] developmental16 [disability] disabilities.17 (b) "Secure facility" means a facility within the [state] office of18 mental health or the [state] office [of mental retardation and] for19 people with developmental disabilities which is staffed with personnel20 adequately trained in security methods and is so equipped as to minimize21 the risk or danger of escapes, and which has been so specifically desig-22 nated by the commissioner.23 (c) "Dangerous mental disorder" means: (i) that a defendant currently24 suffers from a "mental illness" as that term is defined in subdivisionEXPLANATION--Matter in italics (underscored) is new; matter in brackets[ ] is old law to be omitted.LBD11734-01-1S. 5589 21 twenty of section 1.03 of the mental hygiene law, and (ii) that because2 of such condition he currently constitutes a physical danger to himself3 or herself or others.4 (d) "Mentally ill" means that a defendant currently suffers from a5 mental illness for which care and treatment as a patient, in the in-pa-6 tient services of a psychiatric center under the jurisdiction of the7 [state] office of mental health, is essential to such defendant's8 welfare and that his or her judgment is so impaired that he or she is9 unable to understand the need for such care and treatment; and, where a10 defendant is mentally retarded, the term "mentally ill" shall also mean,11 for purposes of this section, that the defendant is in need of care and12 treatment as a resident in the in-patient services of a developmental13 center or other residential facility for the mentally retarded and14 developmentally disabled under the jurisdiction of the [state] office15 [of mental retardation and] for people with developmental disabilities.16 (e) "Examination order" means an order directed to the commissioner17 requiring that a defendant submit to a psychiatric examination to deter-18 mine whether the defendant has a dangerous mental disorder, or if he or19 she does not have a dangerous mental disorder, whether he or she is20 mentally ill.21 (f) "Commitment order" [or "recommitment order"] means an order22 committing a defendant to the custody of the commissioner for confine-23 ment in a secure facility for care and treatment [for six months from24 the date of the order].25 (g) "First retention order" means an order which is effective at the26 expiration of the period prescribed in a commitment order [for] or a27 recommitment order, authorizing continued custody of a defendant by the28 commissioner for a period not to exceed one year.29 (h) "Second retention order" means an order which is effective at the30 expiration of the period prescribed in a first retention order, author-31 izing continued custody of a defendant by the commissioner for a period32 not to exceed two years.33 (i) "Subsequent retention order" means an order which is effective at34 the expiration of the period prescribed in a second retention order or a35 prior subsequent retention order authorizing continued custody of a36 defendant by the commissioner for a period not to exceed two years.37 (j) "Retention order" means a first retention order, a second38 retention order or a subsequent retention order.39 (k) "Furlough order" means an order directing the commissioner to40 allow a defendant in confinement pursuant to a commitment order, recom-41 mitment order or retention order to temporarily leave the facility for a42 period not exceeding fourteen days, [either] with [or without] the43 constant supervision of one or more employees of the facility.44 (l) "Transfer order" means an order directing the commissioner to45 transfer a defendant from a secure facility to a non-secure facility46 under the jurisdiction of the commissioner or to any non-secure facility47 designated by the commissioner.48 (m) "Release order" means an order directing the commissioner to49 terminate a defendant's in-patient status without terminating the50 commissioner's responsibility for the defendant.51 (n) "Discharge order" means an order terminating an order of condi-52 tions or unconditionally discharging a defendant from supervision under53 the provisions of this section.54 (o) "Order of conditions" means an order directing a defendant to55 comply with this prescribed treatment plan, or any other condition which56 the court determines to be reasonably necessary or appropriate, and, inS. 5589 31 addition, where a defendant is in custody of the commissioner, not to2 leave the facility without authorization. In addition to such condi-3 tions, when determined to be reasonably necessary or appropriate, an4 order of conditions may be accompanied by a special order of conditions5 set forth in a separate document requiring that the defendant: (i) stay6 away from the home, school, business or place of employment of the7 victim or victims, or of any witness designated by the court, of such8 offense; or (ii) refrain from harassing, intimidating, threatening or9 otherwise interfering with the victim or victims of the offense and such10 members of the family or household of such victim or victims as shall be11 specifically named by the court in such special order. An order of12 conditions or special order of conditions shall be valid for five years13 from the date of its issuance, except that, for good cause shown, the14 court may extend the period for an additional five years.15 (p) "District attorney" means the office which prosecuted the criminal16 action resulting in the verdict or plea of not responsible by reason of17 mental disease or defect.18 (q) "Qualified psychiatrist" means a physician who (i) is a diplomate19 of the American board of psychiatry and neurology or is eligible to be20 certified by that board; or (ii) is certified by the American osteopath-21 ic board of neurology and psychiatry or is eligible to be certified by22 that board.23 (r) "Licensed psychologist" means a person who is registered as a24 psychologist under article one hundred fifty-three of the education law.25 (s) "Psychiatric examiner" means a qualified psychiatrist or a26 licensed psychologist who has been designated by the commissioner to27 examine a defendant pursuant to this section, and such designee need not28 be an employee of the department of mental hygiene.29 2. [Examination] Sentence; examination order; psychiatric examiners.30 Upon entry of a verdict of not responsible by reason of mental disease31 or defect, or upon the acceptance of a plea of not responsible by reason32 of mental disease or defect, the court must immediately (a) impose a33 period of confinement in the custody of the commissioner which is equal34 to the sentence of imprisonment such defendant would have received35 pursuant to article seventy of the penal law, upon conviction of the36 crime with which he or she was charged; and (b) issue an examination37 order. Upon receipt of such order, the commissioner must designate two38 qualified psychiatric examiners to conduct the examination to examine39 the defendant. In conducting their examination, the psychiatric examin-40 ers may employ any method which is accepted by the medical profession41 for the examination of persons alleged to be suffering from a dangerous42 mental disorder or to be mentally ill or retarded. The court may author-43 ize a psychiatrist or psychologist retained by a defendant to be present44 at such examination. The clerk of the court must promptly forward a copy45 of the examination order to the mental hygiene legal service and such46 service may thereafter participate in all subsequent proceedings under47 this section.48 In all subsequent proceedings under this section, [prior to the issu-49 ance of a special order of conditions,] the court shall consider whether50 any order of protection had been issued prior to a verdict of not51 responsible by reason of mental disease or defect in the case, or prior52 to the acceptance of a plea of not responsible by reason of mental53 disease or defect in the case.54 3. Examination order; place of examination. Upon issuing an examina-55 tion order, the court must, except as otherwise provided in this subdi-56 vision, direct that the defendant be committed to a secure facilityS. 5589 41 designated by the commissioner as the place for such psychiatric exam-2 ination. The sheriff must hold the defendant in custody pending such3 designation by the commissioner, and when notified of the designation,4 the sheriff must promptly deliver the defendant to such secure facility.5 [When the defendant is not in custody at the time of such verdict or6 plea, because he was previously released on bail or on his own recogni-7 zance, the court, in its discretion, may direct that such examination be8 conducted on an out-patient basis, and at such time and place as the9 commissioner shall designate. If, however, the commissioner informs the10 court that confinement of the defendant is necessary for an effective11 examination, the court must direct that the defendant be confined in a12 facility designated by the commissioner until the examination is13 completed.]14 4. Examination order, duration. Confinement in a secure facility15 pursuant to an examination order shall be for a period not exceeding16 thirty days, except that, upon application of the commissioner, the17 court may authorize confinement for an additional period not exceeding18 thirty days when a longer period is necessary to complete the examina-19 tion. [If the initial hearing required by subdivision six of this20 section has not commenced prior to the termination of such examination21 period, the commissioner shall retain custody of the defendant in such22 secure facility until custody is transferred to the sheriff in the23 manner prescribed in subdivision six of this section.] During the period24 of such confinement, the physician in charge of the facility may admin-25 ister or cause to be administered to the defendant such emergency26 psychiatric, medical or other therapeutic treatment as in his or her27 judgment should be administered. [If the court has directed that the28 examination be conducted on an out-patient basis, the examination shall29 be completed within thirty days after the defendant has first reported30 to the place designated by the commissioner, except that, upon applica-31 tion of the commissioner, the court may extend such period for a reason-32 able time if a longer period is necessary to complete the examination.]33 5. Examination order; reports. After he or she has completed his or34 her examination of the defendant, each psychiatric examiner must prompt-35 ly prepare a report of his or her findings and evaluation concerning the36 defendant's mental condition, and submit such report to the commission-37 er. If the psychiatric examiners differ in their opinion as to whether38 the defendant is mentally ill or is suffering from a dangerous mental39 disorder, the commissioner must designate another psychiatric examiner40 to examine the defendant. Upon receipt of the examination reports, the41 commissioner must submit them to the court that issued the examination42 order. If the court is not satisfied with the findings of these psychi-43 atric examiners, the court may designate one or more additional psychi-44 atric examiners pursuant to subdivision fifteen of this section. [The45 court must furnish a copy of the reports to the district attorney, coun-46 sel for the defendant and the mental hygiene legal service.]47 6. [Initial hearing; commitment] Commitment order. After the examina-48 tion reports are submitted, the court must[, within ten days of the49 receipt of such reports, conduct an initial hearing to determine the50 defendant's present mental condition. If the defendant is in the custody51 of the commissioner pursuant to an examination order, the court must52 direct the sheriff to obtain custody of the defendant from the commis-53 sioner and to confine the defendant pending further order of the court,54 except that the court may direct the sheriff to confine the defendant in55 an institution located near the place where the court sits if that56 institution has been designated by the commissioner as suitable for theS. 5589 51 temporary and secure detention of mentally disabled persons. At such2 initial hearing, the district attorney must establish to the satisfac-3 tion of the court that the defendant has a dangerous mental disorder or4 is mentally ill. If the court finds that the defendant has a dangerous5 mental disorder, it must] issue a commitment order for the term of the6 period of confinement imposed, pursuant to paragraph (a) of subdivision7 two of this section, and to such a secure facility as shall be suitable8 for a mentally ill person or a person with a dangerous mental disorder,9 as the case may be, based upon the examination reports. [If the court10 finds that the defendant does not have a dangerous mental disorder but11 is mentally ill, the provisions of subdivision seven of this section12 shall apply.]13 7. [Initial hearing civil commitment and order of conditions. If, at14 the conclusion of the initial hearing conducted pursuant to subdivision15 six of this section, the court finds that the defendant is mentally ill16 but does not have a dangerous mental disorder, the provisions of arti-17 cles nine or fifteen of the mental hygiene law shall apply at that stage18 of the proceedings and at all subsequent proceedings. Having found that19 the defendant is mentally ill, the court must issue an order of condi-20 tions and an order committing the defendant to the custody of the21 commissioner. The latter order shall be deemed an order made pursuant to22 the mental hygiene law and not pursuant to this section, and further23 retention, conditional release or discharge of such defendant shall be24 in accordance with the provisions of the mental hygiene law. If, at the25 conclusion of the initial hearing, the court finds that the defendant26 does not have a dangerous mental disorder and is not mentally ill, the27 court must discharge the defendant either unconditionally or subject to28 an order of conditions.29 7-a. Whenever the court issues a special order of conditions pursuant30 to this section, the commissioner shall make reasonable efforts to noti-31 fy the victim or victims or the designated witness or witnesses that a32 special order of conditions containing such provisions has been issued,33 unless such victim or witness has requested that such notice should not34 be provided.35 8.] First retention order. When a defendant is in the custody of the36 commissioner pursuant to a commitment order, the commissioner must, at37 least thirty days prior to the expiration of the period prescribed in38 the order, apply to the court that issued the order, or to a superior39 court in the county where the secure facility is located, for a first40 retention order or a release order. The commissioner must give written41 notice of the application to the district attorney, the defendant, coun-42 sel for the defendant, and the mental hygiene legal service. Upon43 receipt of such application, the court may, on its own motion, conduct a44 hearing to determine whether the defendant has a dangerous mental disor-45 der, and it must conduct such hearing if a demand therefor is made by46 the district attorney, the defendant, counsel for the defendant, or the47 mental hygiene legal service within ten days from the date that notice48 of the application was given to them. If such a hearing is held on an49 application for retention, the commissioner must establish to the satis-50 faction of the court that the defendant has a dangerous mental disorder51 or is mentally ill. The district attorney shall be entitled to appear52 and present evidence at such hearing. If such a hearing is held on an53 application for release, the district attorney must establish to the54 satisfaction of the court that the defendant has a dangerous mental55 disorder or is mentally ill. If the court finds that the defendant has a56 dangerous mental disorder it must issue a first retention order. If theS. 5589 61 court finds that the defendant is mentally ill but does not have a2 dangerous mental disorder, it must issue a first retention order and,3 pursuant to subdivision [eleven] ten of this section, a transfer order4 and an order of conditions. If the court finds that the defendant does5 not have a dangerous mental disorder and is not mentally ill, it must6 issue a release order and an order of conditions pursuant to subdivision7 [twelve] eleven of this section.8 [9.] 8. Second and subsequent retention orders. When a defendant is in9 the custody of the commissioner pursuant to a first retention order, the10 commissioner must, at least thirty days prior to the expiration of the11 period prescribed in the order, apply to the court that issued the12 order, or to a superior court in the county where the facility is13 located, for a second retention order or a release order. The commis-14 sioner must give written notice of the application to the district15 attorney, the defendant, counsel for the defendant, and the mental16 hygiene legal service. Upon receipt of such application, the court may,17 on its own motion, conduct a hearing to determine whether the defendant18 has a dangerous mental disorder, and it must conduct such hearing if a19 demand therefor is made by the district attorney, the defendant, counsel20 for the defendant, or the mental hygiene legal service within ten days21 from the date that notice of the application was given to them. If such22 a hearing is held on an application for retention, the commissioner must23 establish to the satisfaction of the court that the defendant has a24 dangerous mental disorder or is mentally ill. The district attorney25 shall be entitled to appear and present evidence at such hearing. If26 such a hearing is held on an application for release, the district27 attorney must establish to the satisfaction of the court that the28 defendant has a dangerous mental disorder or is mentally ill. If the29 court finds that the defendant has a dangerous mental disorder it must30 issue a second retention order. If the court finds that the defendant is31 mentally ill but does not have a dangerous mental disorder, it must32 issue a second retention order and, pursuant to subdivision [eleven] ten33 of this section, a transfer order and an order of conditions. If the34 court finds that the defendant does not have a dangerous mental disorder35 and is not mentally ill, it must issue a release order and an order of36 conditions pursuant to subdivision [twelve] eleven of this section. When37 a defendant is in the custody of the commissioner prior to the expira-38 tion of the period prescribed in a second retention order, the proce-39 dures set forth in this subdivision for the issuance of a second40 retention order shall govern the application for and the issuance of any41 subsequent retention order.42 [10.] 9. Furlough order. The commissioner may apply for a furlough43 order, pursuant to this subdivision, when a defendant is in his or her44 custody pursuant to a [commitment order,] recommitment order[,] or45 retention order and the commissioner is of the view that, consistent46 with the public safety and welfare of the community and the defendant,47 the clinical condition of the defendant warrants a granting of the priv-48 ileges authorized by a furlough order. The application for a furlough49 order may be made to the court that issued the commitment order, or to a50 superior court in the county where the secure facility is located. The51 commissioner must give ten days written notice to the district attorney,52 the defendant, counsel for the defendant, and the mental hygiene legal53 service. Upon receipt of such application, the court may, on its own54 motion, conduct a hearing to determine whether the application should be55 granted, and must conduct such hearing if a demand therefor is made by56 the district attorney. If the court finds that the issuance of aS. 5589 71 furlough order is consistent with the public safety and welfare of the2 community and the defendant, and that the clinical condition of the3 defendant warrants a granting of the privileges authorized by a furlough4 order, the court must grant the application and issue a furlough order5 containing any terms and conditions that the court deems necessary or6 appropriate. If the defendant fails to return to the secure facility at7 the time specified in the furlough order, then, for purposes of subdivi-8 sion [nineteen] eighteen of this section, he or she shall be deemed to9 have escaped.10 [11.] 10. Transfer order and order of conditions. The commissioner may11 apply for a transfer order, pursuant to this subdivision, when a defend-12 ant is in his or her custody pursuant to a retention order or a recom-13 mitment order, and the commissioner is of the view that the defendant14 does not have a dangerous mental disorder or that, consistent with the15 public safety and welfare of the community and the defendant, the clin-16 ical condition of the defendant warrants his or her transfer from a17 secure facility to a non-secure facility under the jurisdiction of the18 commissioner or to any non-secure facility designated by the commission-19 er. The application for a transfer order may be made to the court that20 issued the order under which the defendant is then in custody, or to a21 superior court in the county where the secure facility is located. The22 commissioner must give ten days written notice to the district attorney,23 the defendant, counsel for the defendant, and the mental hygiene legal24 service. Upon receipt of such application, the court may, on its own25 motion, conduct a hearing to determine whether the application should be26 granted, and must conduct such hearing if the demand therefor is made by27 the district attorney. At such hearing, the district attorney must28 establish to the satisfaction of the court that the defendant has a29 dangerous mental disorder or that the issuance of a transfer order is30 inconsistent with the public safety and welfare of the community. The31 court must grant the application and issue a transfer order if the court32 finds that the defendant does not have a dangerous mental disorder, or33 if the court finds that the issuance of a transfer order is consistent34 with the public safety and welfare of the community and the defendant35 and that the clinical condition of the defendant, warrants his or her36 transfer from a secure facility to a non-secure facility. A court must37 also issue a transfer order when, in connection with an application for38 a first retention order pursuant to subdivision [eight] seven of this39 section or a second or subsequent retention order pursuant to subdivi-40 sion [nine] eight of this section, it finds that a defendant is mentally41 ill but does not have a dangerous mental disorder. Whenever a court42 issues a transfer order it must also issue an order of conditions.43 [12.] 11. Release order and order of conditions. The commissioner may44 apply for a release order, pursuant to this subdivision, when a defend-45 ant is in his or her custody pursuant to a retention order or recommit-46 ment order, and the commissioner is of the view that the defendant no47 longer has a dangerous mental disorder and is no longer mentally ill.48 The application for a release order may be made to the court that issued49 the order under which the defendant is then in custody, or to a superior50 court in the county where the facility is located. The application must51 contain a description of the defendant's current mental condition, the52 past course of treatment, a history of the defendant's conduct subse-53 quent to his or her commitment, a written service plan for continued54 treatment which shall include the information specified in subdivision55 (g) of section 29.15 of the mental hygiene law, and a detailed statement56 of the extent to which supervision of the defendant after release isS. 5589 81 proposed. The commissioner must give ten days written notice to the2 district attorney, the defendant, counsel for the defendant, and the3 mental hygiene legal service. Upon receipt of such application, the4 court must promptly conduct a hearing to determine the defendant's pres-5 ent mental condition. At such hearing, the district attorney must6 establish to the satisfaction of the court that the defendant has a7 dangerous mental disorder or is mentally ill. If the court finds that8 the defendant has a dangerous mental disorder, it must deny the applica-9 tion for a release order. If the court finds that the defendant does not10 have a dangerous mental disorder but is mentally ill, it must issue a11 transfer order pursuant to subdivision [eleven] ten of this section if12 the defendant is then confined in a secure facility. If the court finds13 that the defendant does not have a dangerous mental disorder and is not14 mentally ill, it must grant the application and issue a release order. A15 court must also issue a release order when, in connection with an appli-16 cation for a first retention order pursuant to subdivision [eight] seven17 of this section or a second or subsequent retention order pursuant to18 subdivision [nine] eight of this section, it finds that the defendant19 does not have a dangerous mental disorder and is not mentally ill. When-20 ever a court issues a release order it must also issue an order of21 conditions. If the court has previously issued a transfer order and an22 order of conditions, it must issue a new order of conditions upon issu-23 ing a release order. The order of conditions issued in conjunction with24 a release order shall incorporate a written service plan prepared by a25 psychiatrist familiar with the defendant's case history and approved by26 the court, and shall contain any conditions that the court determines to27 be reasonably necessary or appropriate. It shall be the responsibility28 of the commissioner to determine that such defendant is receiving the29 services specified in the written service plan and is complying with any30 conditions specified in such plan and the order of conditions.31 [13.] 12. Discharge order. The commissioner may apply for a discharge32 order, pursuant to this subdivision, when a defendant has been contin-33 uously on an out-patient status for three years or more pursuant to a34 release order, and the commissioner is of the view that the defendant no35 longer has a dangerous mental disorder and is no longer mentally ill and36 that the issuance of a discharge order is consistent with the public37 safety and welfare of the community and the defendant. The application38 for a discharge order may be made to the court that issued the release39 order, or to a superior court in the county where the defendant is then40 residing. The commissioner must give ten days written notice to the41 district attorney, the defendant, counsel for the defendant, and the42 mental hygiene legal service. Upon receipt of such application, the43 court may, on its own motion, conduct a hearing to determine whether the44 application should be granted, and must conduct such hearing if a demand45 therefor is made by the district attorney. The court must grant the46 application and issue a discharge order if the court finds that the47 defendant has been continuously on an out-patient status for three years48 or more, that he or she does not have a dangerous mental disorder and is49 not mentally ill, and that the issuance of the discharge order is50 consistent with the public safety and welfare of the community and the51 defendant.52 [14] 13. Recommitment order. At any time during the period covered by53 an order of conditions an application may be made by the commissioner or54 the district attorney to the court that issued such order, or to a supe-55 rior court in the county where the defendant is then residing, for a56 recommitment order when the applicant is of the view that the defendantS. 5589 91 has a dangerous mental disorder. The applicant must give written notice2 of the application to the defendant, counsel for the defendant, and the3 mental hygiene legal service, and if the applicant is the commissioner4 he or she must give such notice to the district attorney or if the5 applicant is the district attorney he or she must give such notice to6 the commissioner. Upon receipt of such application the court must order7 the defendant to appear before it for a hearing to determine if the8 defendant has a dangerous mental disorder. Such order may be in the form9 of a written notice, specifying the time and place of appearance, served10 personally upon the defendant, or mailed to his or her last known11 address, as the court may direct. If the defendant fails to appear in12 court as directed, the court [may] shall issue a warrant to an appropri-13 ate peace officer directing him or her to take the defendant into custo-14 dy and bring him or her before the court. In such circumstance, the15 court [may] shall direct that the defendant be confined in an appropri-16 ate institution located near the place where the court sits. The court17 must conduct a hearing to determine whether the defendant has a danger-18 ous mental disorder. At such hearing, the applicant, whether he or she19 be the commissioner or the district attorney must establish to the20 satisfaction of the court that the defendant has a dangerous mental21 disorder. If the applicant is the commissioner, the district attorney22 shall be entitled to appear and present evidence at such hearing; if the23 applicant is the district attorney, the commissioner shall be entitled24 to appear and present evidence at such hearing. If the court finds that25 the defendant has a dangerous mental disorder, it must issue a recommit-26 ment order. When a defendant is in the custody of the commissioner27 pursuant to a recommitment order, the procedures set forth in subdivi-28 sions seven and eight [and nine] of this section for the issuance of29 retention orders shall govern the application for and the issuance of a30 first retention order, a second retention order, and subsequent31 retention orders.32 [15] 14. Designation of psychiatric examiners. If, at any hearing33 conducted under this section to determine the defendant's present mental34 condition, the court is not satisfied with the findings of the psychiat-35 ric examiners, the court may direct the commissioner to designate one or36 more additional psychiatric examiners to conduct an examination of the37 defendant and submit a report of their findings. In addition, the court38 may on its own motion, or upon request of a party, may designate one or39 more psychiatric examiners to examine the defendant and submit a report40 of their findings. The district attorney may apply to the court for an41 order directing that the defendant submit to an examination by a psychi-42 atric examiner designated by the district attorney, and such psychiatric43 examiner may testify at the hearing.44 [16] 15. Rehearing and review. Any defendant who is in the custody of45 the commissioner pursuant to a [commitment order,] a retention order, or46 a recommitment order, if dissatisfied with such order, may, within thir-47 ty days after the making of such order, obtain a rehearing and review of48 the proceedings and of such order in accordance with the provisions of49 section 9.35 or 15.35 of the mental hygiene law.50 [17] 16. Rights of defendants. Subject to the limitations and51 provisions of this section, a defendant committed to the custody of the52 commissioner pursuant to this section shall have the rights granted to53 patients under the mental hygiene law.54 [18] 17. Notwithstanding any other provision of law, no person55 confined by reason of a [commitment order,] recommitment order or56 retention order to a secure facility may be discharged or releasedS. 5589 101 unless the commissioner shall deliver written notice, at least four days2 excluding Saturdays, Sundays and holidays, in advance of such discharge3 or release to all of the following:4 (a) the district attorney.5 (b) the police department having jurisdiction of the area to which the6 defendant is to be discharged or released.7 (c) any other person the court may designate.8 The notices required by this subdivision shall be given by the facili-9 ty staff physician who was treating the defendant or, if unavailable, by10 the defendant's treatment team leader, but if neither is immediately11 available, notice must be given by some other member of the clinical12 staff of the facility. Such notice must be given by any means reasonably13 calculated to give prompt actual notice.14 [19] 18. Escape from custody; notice requirements. If a defendant is15 in the custody of the commissioner pursuant to an order issued under16 this section, and such defendant escapes from custody, immediate notice17 of such escape shall be given by the department facility staff to: (a)18 the district attorney, (b) the superintendent of state police, (c) the19 sheriff of the county where the escape occurred, (d) the police depart-20 ment having jurisdiction of the area where the escape occurred, (e) any21 person the facility staff believes to be in danger, and (f) any law22 enforcement agency and any person the facility staff believes would be23 able to apprise such endangered person that the defendant has escaped24 from the facility. Such notice shall be given as soon as the facility25 staff know that the defendant has escaped from the facility and shall26 include such information as will adequately identify the defendant and27 the person or persons believed to be in danger and the nature of the28 danger. The notices required by this subdivision shall be given by the29 facility staff physician who was treating the defendant or, if unavail-30 able, by the defendant's treatment team leader, but if neither is imme-31 diately available, notice must be given by some other member of the32 clinical staff of the facility. Such notice must be given by any means33 reasonably calculated to give prompt actual notice. The defendant may be34 apprehended, restrained, transported to, and returned to the facility35 from which he escaped by any peace officer, and it shall be the duty of36 the officer to assist any representative of the commissioner to take the37 defendant into custody upon the request of such representative.38 [20] 19. Required affidavit. No application may be made by the39 commissioner under this section without an accompanying affidavit from40 at least one psychiatric examiner supportive of relief requested in the41 application, which affidavit shall be served on all parties entitled to42 receive the notice of application. Such affidavit shall set forth the43 defendant's clinical diagnosis, a detailed analysis of his or her mental44 condition which caused the psychiatric examiner to formulate an opinion,45 and the opinion of the psychiatric examiner with respect to the defend-46 ant. Any application submitted without the required affidavit shall be47 dismissed by the court.48 [21] 20. Appeals. (a) A party to proceedings conducted in accordance49 with the provisions of this section may take an appeal to an intermedi-50 ate appellate court by permission of the intermediate appellate court as51 follows:52 (i) the commissioner may appeal from any release order, retention53 order, transfer order, discharge order, order of conditions, or recom-54 mitment order, for which he or she has not applied;55 (ii) a defendant, or the mental hygiene legal service on his or her56 behalf, may appeal from any [commitment order,] retention order, recom-S. 5589 111 mitment order, or, if the defendant has obtained a rehearing and review2 of any such order pursuant to subdivision [sixteen] fifteen of this3 section, from an order, not otherwise appealable as of right, issued in4 accordance with the provisions of section 9.35 or 15.35 of the mental5 hygiene law authorizing continued retention under the original order,6 provided, however, that a defendant who takes an appeal from a [commit-7 ment order,] retention order, or recommitment order may not subsequently8 obtain a rehearing and review of such order pursuant to subdivision9 [sixteen] fifteen of this section;10 (iii) the district attorney may appeal from any release order, trans-11 fer order, discharge order, order of conditions, furlough order, or12 order denying an application for a recommitment order which he or she13 opposed.14 (b) An aggrieved party may appeal from a final order of the intermedi-15 ate appellate court to the court of appeals by permission of the inter-16 mediate appellate court granted before application to the court of17 appeals, or by permission of the court of appeals upon refusal by the18 intermediate appellate court or upon direct application.19 (c) An appeal taken under this subdivision shall be deemed civil in20 nature, and shall be governed by the laws and rules applicable to civil21 appeals; provided, however, that a stay of the order appealed from must22 be obtained in accordance with the provisions of paragraph (d) [hereof]23 of this subdivision.24 (d) The court from or to which an appeal is taken may stay all25 proceedings to enforce the order appealed from pending an appeal or26 determination on a motion for permission to appeal, or may grant a27 limited stay, except that only the court to which an appeal is taken may28 vacate, limit, or modify a stay previously granted. If the order29 appealed from is affirmed or modified, the stay shall continue for five30 days after service upon the appellant of the order of affirmance or31 modification with notice of its entry in the court to which the appeal32 was taken. If a motion is made for permission to appeal from such an33 order, before the expiration of the five days, the stay, or any other34 stay granted pending determination of the motion for permission to35 appeal, shall:36 (i) if the motion is granted, continue until five days after the37 appeal is determined; or38 (ii) if the motion is denied, continue until five days after the39 movant is served with the order of denial with notice of its entry.40 [22] 21. Any special order of conditions issued pursuant to subpara-41 graph (i) or (ii) of paragraph (o) of subdivision one of this section42 shall bear in a conspicuous manner the term "special order of condi-43 tions" and a copy shall be filed by the clerk of the court with the44 sheriff's office in the county in which anyone intended to be protected45 by such special order resides, or, if anyone intended to be protected by46 such special order resides within a city, with the police department of47 such city. The absence of language specifying that the order is a48 "special order of conditions" shall not affect the validity of such49 order. A copy of such special order of conditions may from time to time50 be filed by the clerk of the court with any other police department or51 sheriff's office having jurisdiction of the residence, work place, or52 school of anyone intended to be protected by such special order. A copy53 of such special order may also be filed by anyone intended to be54 protected by such provisions at the appropriate police department or55 sheriff's office having jurisdiction. Any subsequent amendment or revo-56 cation of such special order may be filed in the same manner as providedS. 5589 121 in this subdivision. Such special order of conditions shall plainly2 state the date that the order expires.3 § 2. This act shall take effect on the first of January next succeed-4 ing the date on which it shall have become a law and shall apply to5 criminal offenses committed on or after such date.